GERARD LEONE & SONS, INC.
OSHRC Docket No. 76-4105
Occupational Safety and Health Review Commission
April 27, 1981
[*1]
Before BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
Albert H. Ross, Regional Solicitor
John D. O'Reilly, III, for the employer
OPINION:
DECISION
BY THE COMMISSION:
This case n1 arises out of a citation charging Gerard Leone & Sons, Inc. ("Gerard Leone" or "the company") with violating the standards at 29 C.F.R. § § 1926.601(b)(10) and (11) n2 by operating a dump truck not equipped with permanently attached means of support for the dump body or with safety latches or other devices capable of preventing accidental release of the dump body. The question for decision is whether the cited standards apply to vehicles operated on a highway open to public traffic.
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n1 The decision of the administrative law judge comes before the Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act").
n2 § 1926.601 Motor Vehicles.
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(b) General Requirements.
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(10) Trucks with dump bodies shall be equipped with positive means of support, permanently attached, and capable of being locked in position to prevent accidental lowering of the body while maintenance or inspection work is being done.
(11) Operating levers controlling hoisting or dumping devices on haulage bodies shall be equipped with a latch or other device which will prevent accidental starting or tripping of the mechanism.
[*2]
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Gerard Leone does not dispute that the dump truck in question was not equipped with the safety devices required by sections 1926.601(b)(10) and (11). The company argues, however, that the truck was not subject to the cited standards because it was being operated on a highway open to public traffic. n3 Gerard Leone contends that the coverage provision at section 1926.601(a) n4 limits the applicability of the cited standards to vehicles being operated on off-highway jobsites.
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n3 The administrative law judge found that Gerard Leone's worksite was on a highway open to public traffic, and that finding is not challenged on review.
n4 This section provides:
§ 1926.601 Motor Vehicles.
(a) Coverage. Motor vehicles as covered by this part are those vehicles that operate within an off-highway jobsite, not open to public traffic. The requirements of this section do not apply to equipment for which rules are prescribed in § 1926.602.
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Administrative Law Judge Abraham Gold ruled that the standards at section 1926.601 are not limited to vehicles being operated within an off-highway site closed to public traffic. He concluded that the emphasis of the coverage provision is on type of vehicle rather than on location of operation and that section 1926.601 applies to vehicles which "generally" operate at sites not open to public traffic. By affirming the citation, Judge Gold implicitly ruled that Gerard Leone's dump truck is one generally operated on off-highway job sites. n5
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n5 The judge also ruled that Clarkson Constr. Co. v. OSHRC, 531 F2d 431 (10th Cir. 1975), on which the Secretary relied, has no bearing on the instant case. He concluded, correctly, that Clarkson dealt with the question of whether the standards at § 1926.601 apply to vehicles operated off the worksite, whereas the question here is whether they apply to vehicles being operated on a worksite if that site is open to public traffic.
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On review Gerard Leone argues that "serious [*4] constitutional problems would be presented if it were to be determined that this standard should apply to such a highway job when the very clear and express terms of the standard led Respondent to believe that highway jobs open to public traffic were excluded." The company suggests that the standard is limited to off-highway jobsites because both the Department of Transportation and the various state agencies have issued extensive safety regulations covering the operation of motor vehicles on highways. The company also contends that even under the judge's reading of the coverage provision the dump truck was excluded from the requirements of sections 1926.601(b)(10) and (11), because Judge Gold specifically found that at the relevant times it was operated on the public street and there is no evidence in the record that it was used on off-highway jobsites on any other occasion. n6 The Secretary of Labor ("the Secretary") relies on the judge's decision.
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n6 Gerard Leone also relies on S.J. Groves & Sons Co., 77 OSAHRC 129/C13, 5 BNA OSHC 1846, 1976-77 CCH OSHD P20,962 (No. 15573, 1977) (ALJ). This, however, is an unreviewed judge's opinion and as such is not binding on the Commission. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).
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We agree with Judge Gold that the coverage provision at section 1926.601(a) limits the standard's applicability by vehicle and not by location, and that section 1926.601 does apply to this particular dump truck. We do not, however, agree with the judge's determination that the standard applies to "vehicles which generally operate at sites not open to public traffic." Rather, we conclude that the standard applies to trucks that operate off highway even if they do not operate exclusively off highway, regardless of where they are generally operated or where they are operated at a particular time.
The first sentence of subsection 601(a) expressly applies to "those vehicles that operate off highway," while the second sentence specifically excludes "equipment for which rules are prescribed in section 1926.602." Section 1926.602, entitled "Material Handling Equipment," applies to, among other things, trucks operated exclusively off highway. n7 This indicates that trucks that operate exclusively off-highway are not covered by section 1926.601. It follows, therefore, that section 1926.601 applies to trucks [*6] that operate both on and off highway. Moreover, the standards at section 1926.601 contain several provisions that clearly contemplate use of the regulated vehicles on the highway: subsection 601(b)(6) applies to haulage vehicles, and subsection 601(b)(8) applies to vehicles used to transport employees. In Durant Elevator, A Division of Scoular-Bishop Grain Elevator, 80 OSAHRC , 8 BNA OSHC 2187, 1980 CCH OSHD P24,873 (No. 77-1518, 1980), the Commission vacated a citation based on the cited standard's exemption for farm vehicles. The Commission ruled that the definition of farm vehicle applied to the cited vehicle and precluded coverage despite its operation on public highways. Just as use of the vehicle in Durant on the highway does not change its character as a "farm vehicle", the use of the dump truck on the highway in the instant case does not render the standard inapplicable to a vehicle that meets the standard's coverage requirement, i.e., use off highway.
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n7 § 1926.602 Material handling equipment.
(a) Earthmoving equipment; General (1) These rules apply to the following types of earth moving equipment: scrapers, loaders, crawler or wheel tractors, bulldozers, off-highway trucks, graders, agricultural and industrial tractors, and similar equipment. The promulgation of specific rules for compactors and rubber-tired "skidsteer" equipment is reserved pending consideration of standards currently being developed.
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From this it is evident that the standards at section 1926.601 are intended to protect employees on construction sites from the hazards of unsafe motor vehicles regardless of the on- or off-highway character of the site. It is axiomatic that standards should be interpreted to effectuate rather than frustrate their underlying intent. Marshall v. Southwestern Industrial Contractors & Riggers, Inc., 576 F.2d 42 (5th Cir. 1978); GAF Corp., 73 OSAHRC 3/A2, 3 BNA OSHC 1686, 1975-76 CCH OSHD P20,163 (No. 3203, 1975), aff'd, 561 F.2d 913 (D.C. Cir 1977). Accordingly, we hold that section 1926.601 applies to motor vehicles (as opposed to material handling equipment) used on construction sites regardless of whether they are being used on or off highway at any particular time.
In view of our holding that section 1926.601 applies to trucks that can operate both on and off highway regardless of their actual or general use or the location where they are operated at any particular time, Gerard Leone's argument that the record contains no evidence that the cited truck was ever used off-highway becomes [*8] inapposite. n8
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n8 In granting the company's petition for review, Acting Chairman Barnako directed the parties to consider the significance, if any, of the provisions of 29 C.F.R. § 1926.600, particularly subsection (a)(3)(1), which provides:
(3)(i) Heavy machinery, equipment, or parts thereof, which are suspended or held aloft by use of slings, hoists, or jacks shall be substantially blocked or cribbed to prevent falling or shifting before employees are permitted to work under or between them. Bulldozer and scraper blades, endloader buckets, dump bodies, and similar equipment, shall be either fully lowered or blocked when being repaired or when not in use. All controls shall be in a neutral position, with the motors stopped and brakes set, unless work being performed requires otherwise.
However, our holding makes it unnecessary to decide the significance of § 1926.600 and its subsection 600(a)(3)(1).
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Accordingly, we affirm the judge's decision. SO ORDERED
DISSENTBY: BARNAKO
DISSENT:
BARNAKO, Acting Chairman, dissenting:
The majority's [*9] interpretation of subsection 601(a) is neither consistent with the plain and natural meaning of its terms nor necessary to effectuate the purpose of the motor vehicle standards as a whole. The standards at section 601 do not apply to the cited conditions and therefore I dissent from the decision to affirm the citation alleging that Respondent violated 29 CFR § § 1926.601(b)(10) and (11).
Questions of regulatory interpretation must begin with the premise that employers have a right to fair warning of what conduct a standard prohibits or requires. In consequence, if the terms of a regulation have a natural or customary meaning which is consistent with the overall regulatory scheme, we must not strain and bend that language to impose requirements which employers could not reasonably have anticipated. See Gil Haugan d/b/a Haugan Constr. Co., 79 OSAHRC 107/A2, 7 BNA OSHC 2004, 1979 CCH OSHD P24,105 (No. 76-1512, 1979) (concurring and dissenting opinion). This approach not only serves due process of law, it ultimately best serves the Act itself, for "[t]o strain the plain and natural meaning of words for the purpose of alleviating a perceived safety hazard is to delay the day [*10] when the occupational safety and health regulations will be written in clear and concise language so that employers will be better able to understand and observe them." Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976).
The standards at issue in this case are expressly limited in application by subsection 601(a) to motor vehicles "that operate within an off-highway jobsite, not open to public traffic." Therefore, the cited standards apply only if it can be established that the vehicle is being operated in an off-highway jobsite.
My colleagues conclude that section 601 applies to vehicles which can operate in off-highway jobsites, regardless of whether they operate at such a site at any particular time. n1 Not only is such an interpretation contrary to the clear wording of subsection 601(a) but by focusing on the type of vehicle in question rather than the location the vehicle is actually used, my colleagues ignore the fact that material handling equipment governed by section 602, to which the cited standards do not apply, is expressly defined in terms of vehicle type. Furthermore, the term "that operate" in subsection 601(a) implies a test based on location [*11] of the vehicle; this term does not appear in subsection 602(a). In my opinion, my colleagues err in reading into section 601 a test based on vehicle type since express language referring to vehicle type, which appears elsewhere in the standards, is not an element of subsection 601(a) and since a limitation based on location does not appear in subsection 602(a) which is directed at vehicle type. Because subsections 601(a) and 602(a) clearly distinguish coverage based on location from coverage based on type, the reasonable employer would not interpret subsection 601(a) as imposing any requirements based solely on vehicle type.
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n1 My colleagues' holding is unclear, however, for they also state that section 601 does not apply to trucks which operate exclusively off-highway. See note 2, infra.
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Furthermore, it is a basic tenet of regulatory construction that standards are to be read together so as to form a harmonious whole; meaning should, if possible, be given to every word and phrase of a standard. [*12] United States v. Menasche, 348 U.S. 528, 538-39 (1955). In my view, the provisions of section 601, which is entitled "Motor vehicles," apply to any motor vehicle during the time that it is operating within an off-highway site unless the vehicle is one of the specific types to which section 602, entitled "Material handling equipment," applies. The latter standard applies to equipment of the type specified regardless of where it operates. Any gaps in coverage between these two sections would be filled by the provisions at section 600, which is entitled "Equipment" generally. n2
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n2 My colleagues state that section 602 applies, and section 601 does not apply, among other things, to trucks operated "exclusively off highway" (emphasis added). However, trucks operated exclusively off highway are capable of being operated on a highway jobsite as well. Therefore, my colleagues' characterization of their holding "that section 601 applies to trucks that can operate both on and off highway regardless of their actual or general use. . . ." (emphasis added) is inconsistent for it includes all off-highway trucks within the ambit of section 601.
[*13]
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Finally, I note that contrary to my colleagues' opinion, our decision in Durant Elevator, A Division of Scoular-Bishop Grain Elevator, 80 OSAHRC , 8 BNA OSHC 2187, 1980 CCH OSHD P24,873 (No. 77-1518, 1980), does not support their conclusion. In Durant Elevator, we did not disregard the literal meaning of the definition in issue. n3 Rather, we determined that the vehicle cited in that case "fit within the literal definition of 'farm vehicle,'" and thus we vacated the citation. We did not, as my colleagues do in this case, adopt a strained reading of the plain meaning of the relevant definition. In any event, Durant Elevator is plainly distinguishable from this case since it involved the definition of a certain vehicle type in terms which did not include the actual or present use of the vehicle. The issue in this case, however, concerns a scope provision which is based on the location of use and not vehicle type.
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n3 Durant Elevator involved the meaning of the term "farm vehicle" as used in the standard regulating hydrous ammonia, 29 C.F.R. § 1910.111.
[*14]
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Because the evidence does not establish that the cited truck operated off-highway, I would vacate the citation. n4
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n4 A provision of the general standard at section 600 appears applicable to the conditions at issue in this case. Specifically, subsection 600(a)(3)(1) provides in pertinent part that "[h]eavy machinery, equipment, or parts thereof, which are suspended or held aloft by use of slings, hoists, or jacks shall be substantially blocked or cribbed to prevent falling or shifting before employees are permitted to work under or between them. . . . [D]ump bodies . . . shall be either fully lowered or blocked when being repaired or when not in use." I would not, however, amend the citation to allege a violation of this standard. Such an amendment would only be appropriate if the parties tried the issue of a violation of subsection 600(a)(3)(i) by express or implied consent. See Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979); McLean-Behm Steel Erectors, Inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHC P23,139 (No. 15582, 1978) (dissenting opinion), rev'd, 608 F.2d 580 (5th Cir. 1979). There was no such consent here as the possibility of Respondent's noncompliance with subsection 600(a)(3)(i) was never raised at or prior to the hearing, and the parties plainly did not believe that they were trying a violation of that standard. Moreover, the requirements of subsection 600(a)(3)(i) differ substantially from the requirements of the standards that were cited. The cited standards require that dump trucks be equipped with certain devices, while subsection 600(a)(3)(i) requires that certain work practices be followed. Thus, Respondent did not have the opportunity fully to litigate all issues relevant to a possible violation of subsection 600(a)(3)(i). I also note that the Secretary has not moved for an amendment to subsection 600(a)(3)(i) even after my direction for review called attention to the possible applicability of that standard.
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